Early thoughts on Leveson 1 of 4 – Regulation

This is one of a series of responses to the publication of the report of the Leveson Inquiry.  For an introduction, and links to other posts, see here.  Sorry, this is the longest one.  I hope it’s worth it.

Much commentary in the lead-up to the publication of the report was on what sort of regulatory system would be recommended.  The report outlines various aspects of a new regulatory system, which would be different from that of the PCC, as well as the proposals put forward by those associated with the PCC and with newspapers.  But actually, we are not sure what model is being recommended yet.  In my view a key feature of regulation must surely be the method of oversight, and it is this particular point where important details are left for a later stage.  The report proposes that Ofcom (and by saying so, ruling out the idea that it would be Government or a Minister) plays a role in recognising an independent regulatory body but how that relationship is to proceed is not yet clear.  The criteria are (to some extent) set out, and it would appear as if the designation would be on the lighter side, i.e. no obvious monitoring role for Ofcom, and the ‘backstop’ (as in place for broadcast advertising) would not be present at first, although it is recommended that Ofcom would be best placed to be involved in that process.

On the other hand, what we do see is many statements on the importance of independence.  The language of self-regulation is also used quite extensively.  I’m watching the summaries and reactions carefully as how this is received and reported is going to be so important.

As for compulsion/incentives there is very positive discussion of the ‘Irish model‘ (pp. 1708ff) and indeed similar proposals regarding the link between subscription to a regulatory body and the use of defences, with some further suggestions regarding arbitration.  I guess the difference in emphasis is that the ‘carrot’ in Irish law is the statutory Reynolds-like defence (responsible journalism), here it appears to be data protection/ICO powers and civil costs (presumably in defamation, privacy etc.). It’s fair to say that if we see methods of co-regulation as being set out on a spectrum, as academics like Chris Marsden have argued, that we don’t have a clear statement in the report on where on the spectrum Leveson would see press regulation sitting.  (This is not necessarily a criticism, as defining that will now fall to Parliament, perhaps).

If I were forming a view on the system (which I can’t without more details), I would also need to know whether decisions of the body would be subject to judicial review and bound to act in accordance with the Human Rights Act.  I should hope so, with penalties of up to £1,000,000 and also the ability to benefit from membership in other proceedings.  For the press, as well as complainants, who guards the guardians is very significant.  Some of this could flow from the method of designation (I won’t bore you with my views on this which I have set out in length), and the report does appear to assume that JR (not sure whether this means ‘old’ style or s 6 HRA) would be part of the scheme (p. 1766), but this could be made even clearer by building it into the statutory underpinning… (To be fair, there is also a very brief mention (p. 1601), in the context of the Hunt proposals rather than the inquiry’s own recommendation, that the industry would be ‘unlikely to contest’ justicability, but that’s far from enough).

I am interested in the question of multiple regulatory bodies.  There is a genuine difficulty in this issue – is a single body the sensible way to have an accountable, understandable system?  Or does (as the BBFC has recently argued, perhaps reflecting its own changing position and role) the existence of multiple regulatory bodies avoid the concentration of power over expression in too few hands?  In the report, it’s not really seen in that way, although it is argued (p. 1779) that more than one regulatory body (in the area under consideration) should be possible but is not advocated and “would (be regarded) as a failure on the part of the industry”.  (But see the recent changes to the Video Recordings Act, recognising two bodies instead of one, so as to separate the video games sector from video/DVD works, which was not really seen in that way; the BBFC or the whole cinema/video/games area isn’t discussed in the report).

There has been some doubt expressed by the Prime Minister on taking forward the recommendations in his speech today.  It’s interesting to see the approach here being about “crossing a rubicon”.  Frankly I think this is a selective reading of the current law, where on one hand we see serious restrictions of press freedom through the law of defamation, contempt of court, official secrets in place, and on the other hand press privileges such as favourable VAT treatment, exemptions from data protection legislation in place.  That rubicon has long been crossed and it is a bit rich for the Prime Minister to suggest that press freedom is currently safe in the hands of the House of Commons.  I am not signed up to the view that the response should be one that satisfies the victims (I’ve never believed that is the measure of law in any other area so I don’t intend to start believing it now), and think that it is unfair to criticise Cameron for failing to honour that sort of promise; however, as this paragraph should make clear, I think the conceptual basis of his approach is dead wrong and potentially misleading.

(For the record, on VAT – the recommendation, following the legal advice of HMRC etc, is that this is not really a viable method of control: p. 1660).

An eye-catching recommendation is a specific statutory provision on the freedom of the press (p. 1780)  This is fairly new to me but I probably missed it in the avalanche of evidence and documents.  I can see it being part of the mandate of a regulatory body for sure, but I’m not sure what it offers above and beyond the existing requirement of article 10 ECHR as referenced in the Human Rights Act.  And two other things: (a) constitutional provisions on press freedom are controversial in terms of the relationship between the rights of the press, rights to expression more generally, and the wide idea of communication rights, and (b) the EU Charter now couples freedom of expression and media pluralism; would that approach be followed here?  The draft here, modelled on that of the Media Regulation Round Table, is called an admirable proposal but not prescriptive as to text.  I think that caution is wise – as drafted, it seems too favourable to media interests and its relationship with Article 10 ECHR and Article 11 CFR is unclear.

Just a point on education and training, which was a big theme in the earliest Leveson hearings, but is not the subject of a specific recommendation after all.  It’s noted (p. 736) that training is increasingly university-based and the importance of training is emphasised.  Would the new press body have a role to play?  I don’t see anything on that but it may be helpful.  Perhaps this is a thumbs-up for existing education but I wonder whether further action will be needed under this heading…

La genta esta muy loca

Another Monday, another Ofcom decision on language in songs broadcast on the radio (in Broadcast Bulletin 195). (I’m working on a project this year where I’m looking at Ofcom decisions, but this is just an informal blog post rather than the fruits of that labour). This time around, the controversial broadcast appears to have been a genuine accident, where Capital FM played from a CD (instead of what I presume is a hard disc playout system) and played the unedited version of Loca People instead of the more radio-friendly edited version (all day, all night, what the ….). A sharp producer managed to hit the off button pretty quickly and an apology followed a few minutes later. (Not the first time for this sort of error this year – another Capital station in Leicester played the wrong version of Do It Like a Dude (rather than the edited version which simply leaves you trying to work out the rhyme for dirty dirty dirty dirty dirty dirty sucker, you think I can’t get hurt like you, you mother- (blank) – a tough one to work out).

Some of the cases about language on the radio turn on the protection of under 18s, but fortunately for Capital, this was in the morning during the school term, so all good children were nowhere near a radio. Instead, the clause of the Broadcasting Code being looked at was a general one, “In applying generally accepted standards broadcasters must ensure that material which may cause offence is justified by the context” (rule 2.3), and it was considered ‘resolved’ rather than a breach of the code, given the circumstances and the remedial measures put in place.

The bigger issue here is that new guidance on this matter is, according to reports over the last couple of months, on the way. Ofcom flagged this in BB 189 in September, saying that ‘In view of our concerns about the material in [cases in that bulletin], especially those broadcast when children were particularly likely to have been listening, we will be requesting that a number of radio broadcasters across the industry who transmit such programming attend a meeting at Ofcom to discuss the compliance of such material”.

There has been a number of interesting radio/music cases this year, and BB 189 was a bumper issue for rude words on the radio. It included the already legendary Brick FM decision (the station had already been up for breach of licence obligations in BB 184), where the station entered into a debate about the meaning of punany/punani (a hot sandwich or a sexual swear word?) and also suggested that Ofcom didn’t understand Scottish dialect (re the word ‘fuck’ – perhaps this argument didn’t occur to Capital FM in today’s case). My heart goes out to a Durham station, Bishop FM, who managed to play a rather fruity Eminem track (No Love – full text in the Ofcom bulletin) during a kids’ request show called School’s Out. Oops. And the exact same phrase that is the key refrain of Loca People was also the subject of a case in BB 192, when OnFM (a community station in London) played a version of Fatboy Slim’s Star 69 which repeated that phrase. 41 times (yup, they counted).

Ofcom’s new guidance will be important – we’ve already seen some discussion on music videos and on live pre-watershed performances on TV. Despite some assumptions that there are links between problem language and genre, today’s case is from a (no offence) bland bit of Europop, and the cases mentioned in this blog post do have quite an interesting range. There’s also a mix of major players and shoestring community stations. Watch this (bleep) for more.

Complaints, content regulation and media convergence in the UK

During 2011/12, I’ll be working (among other things) on a project on media content regulation in the UK, with a particular focus on complaints about broadcasting.  It’s funded by the British Academy Small Grants scheme, and I’ll share further information once it is up and running.  The project includes analysis of decisions (with the help of a research assistant), interviews, and historical/archive work.  Here’s the abstract:

Despite the changes brought about in relation to technological convergence, the proliferation of television channels and the availability of content on the Internet, content regulation remains an important issue for much of the UK media. The point of entry for legal scholarship in this area tends to be the overarching statutory controls (e.g. the passing of the Communications Act 2003) or human rights law (the consequences of licensing or prior scrutiny, the impact of controversial decisions on freedom of expression). This study is an attempt to consider, with a particular view to the apparent changes in the media industries and in audience behaviour, the real impact of content regulation in situations where it is more routine (and less dramatic) than the occasional but well-scrutinised times when Parliament assesses principles or a court reviews a particular determination. At a time when diverse laws are under review, this work would contribute, through analysis of decisions in particular, to a debate of wider public interest, informed by scholarship in media/cultural studies.

Wifi 2011

John William Nelson (website, papers, Lex Technologiae blog) is an American attorney and was, in 2008-9, a postgraduate student and associate tutor at the UEA Law School. Since returning to the US, he has continued to write about law and technology, and most recently, his Lex Technologiae blog turns to a subject very close to my heart, that of open wifi. I last wrote in detail about this in a 2009 paper in SCRIPTed, but if anything, the issue has become more prominent since as a result of legislative and judicial developments. John’s post (read it here) is triggered by a short piece in Wired, but he goes further and argues that the problem is the lack of a clear interpretation of the US legislation (the CFAA) and the use of a wifi-related charge in place of or to add to other criminal charges; this makes it harder to test the hard cases. If you’re interested in the Australian situation, there’s a lovely paper by Carter and Makin available here.

Meanwhile, one of the big issues in the UK was the treatment of small-scale wireless networks under the Digital Economy Act (i.e. whether running an access point made you an ISP) – which, of course, isn’t about the wifi user but the wifi provider, but does have an impact on the availability and viability of open wifi. That hasn’t been resolved yet by any means, despite some intriguing (and inconclusive) comments in Ofcom’s 2010 consultation on its initial obligations code). Continuing the theme of different measures affecting the wireless world, the last fortnight has seen good coverage of a battle (read the for and against as reproduced by Ars Technica) in North Carolina on that old favourite, municipal wifi. I’m not sure ‘wifi law’ is any clearer than it was two years ago, and indeed the popularity of smartphones (aka portable wifi detecting and joining devices!) and that always-mentioned cloud thing cannot but make the questions more significant.

Health Nazis and Nicole Ritchie

When I teach about the regulation of ‘standards’ in broadcasting, I tend to start with ‘that’ clip from the Super Bowl in 2004.  Over time, fewer know from the start how it’s going to end, but for me, it’s turning into the case that will always be with us!  I suppose for some, it’s our version of George Carlin’s Seven Dirty Words (although give me Carlin any day).  But this week, there have been two important developments, in the US and the UK, that do move these debates on a little.  (The actual Super Bowl case, which is CBS v FCC, is itself still on the go, and will certainly be affected by one of this week’s decisions).

Starting closer to home, though,(and with much less discussion as far as I’ve found) we have the High Court decision in Gaunt v Ofcom [2010] EWHC 1756 (QB).  This decision has (to use a cliché) been ‘eagerly awaited’ by those interested in media regulation as well as free speech issues in general.  Jon Gaunt, then of TalkSport, brought the case (with the support of Liberty), to challenge an adverse finding of Ofcom under the Communications Act 2003 and the Broadcasting Code regarding Gaunt’s interview with Redbridge councillor Michael Stark (or as Gaunt put it, a ‘Nazi’ or a ‘health Nazi’).  The challenge wasn’t to the Code, but to the decision regarding Gaunt (who was able to establish standing, although the original decision was – in formal terms – directed at TalkSport as the responsible broadcaster), and the basis for the challenge was article 10 of the European Convention on Human Rights, through the UK’s Human Rights Act.  Indeed, a wide range of ECHR decisions were presented, particularly on Gaunt’s side.  Ofcom’s argument included the special position of broadcasting, the regulatory role of Ofcom which takes Convention rights into account, and an attempt to relocate the debate away from political speech territory due to the gratuitous abuse that Gaunt was said to have been delivering.  The actual discussion by the court is very short, and while it is accepted that article 10 has a role to play (key phrase: ‘we regard “generally accepted standards” in this context as elusive, and the concept of harmful and/or offensive material needs to be moderated in the light of Article 10 and the domestic and Strasbourg case law‘) and that the Court needs to engage in its own analysis of the matter, there is ultimately no problem: ‘the essential point is that, the offensive and abusive nature of the broadcast was gratuitous, having no factual content or justification‘.

Now on one hand, it was somewhat encouraging to see that the High Court would have a chance to say something about broadcast regulation.  In that context, it’s fair enough that some (such as the comprehensive Media Blog) would see the decision as ultimately supportive of the British approach to impartiality.  I’m not sure that I’m seeing this, though (and I do have good things to say about impartiality regulation in the licensed broadcast sector) – there is not very much in the operative parts of the judgement regarding broader principles, and in the end it seems that the issue was a failure to persuade the court of the value of the speech, rather than a principle regarding the role of regulation that will affect other areas.  Within those terms, then, the decision remains unfulfilling, as the disposition makes little attempt to engage with the Strasbourg jurisprudence discussed in earlier paragraphs, and introduces what seems like a new sort of test for what is political speech without really explaining the distinction between political and other speech.  Some reports hail the definition of some of Gaunt’s comments as political as some sort of victory for him.  I disagree – this is not much of a victory, and the test remains unclear in any event.

Anyway, over to the wonderful world of the FCC, where the decision in FCC v Fox (PDF) does appear to have something very important to say about broadcast regulation and the ongoing life of the 1978 Pacifica decision, FCC v Pacifica 438 US 726, about those seven words mentioned in the introduction to this post. This case has already been up to the Supreme Court (coverage here), which found in favour of the FCC on the administrative law ground, but sent the matter back down without resolving the First Amendment issue.  It’s a challenge to a series of FCC decisions regarding the broadcast of one-off dangerous words such as shit (as uttered by the Ms. Ritchie of this blog’s title).  This week’s decision is thus the First Amendment one, and the answer is that the court favours the Fox position and finds the FCC’s current policy on ‘fleeting expletives’ being indecent (and profane too, don’t you know?)  unconstitutional on the grounds of its vagueness, with some further comments on the chilling effect of the FCC’s approach.  The latter section is loaded with examples and is extremely well argued, concluding that “sex and the magnetic power of sexual attraction are surely among the most predominant themes in the study of humanity since the Trojan War [and] the digestive system and excretion are also important areas of human attention […] to place any discussion of these vast topics at the broadcaster’s peril has the effect of promoting wide self-censorship of valuable material which should be completely protected under the First Amendment“.

One point of note  is that the Court would (if it could) depart from Pacifica and apply strict scrutiny to broadcast television.  This is well-reported – but not the reasons for such, which rely in great part on the existence of the V-chip.  This does sting a little – I think that there are problems with Pacifica, but the existence of this stupid required technology (most brilliantly parodied in the South Park movie) as the cause for such feels a little strange.  There’s also some very revealing phrasing from the head of the FCC as quoted in the New York Times: the agency will be “reviewing the court’s decision in light of our commitment to protect children, empower parents, and uphold the First Amendment”.  Interesting order of commitments there.  But generally speaking, a big change in the regulation debate in the US, which is more than we can say for the UK after the Gaunt case.